Double Invention: And Now?

What happens if you think you have invented something and in fact, there is someone else claiming to have invented the same at the same time?

First of all, how would you recognize if you have discovered or invented something? Let’s start from the definition.

A discovery…
concerns something that already existed at the time of the discovery, but was previously unknown. As a result of the discovery, nothing has changed except the associated increase in knowledge. Discoveries are therefore the first description of a law of nature or a law derived from laws of nature.

An invention…
concerns something that has not existed before. However, there is a connection with what is already known, to which changes are made so that the effect is improved quantitatively or qualitatively. Today, there is a tendency to relate inventions only to material things and to exclude abstract things from inventions. Inventions are creative achievements that enable previously unknown solutions and applications in the field of technology. If an intention can be used commercially, it can be protected by a patent or utility model. Patents are thus granted for inventions that are new, based on an inventive step and industrially applicable.

Do you think you have invented something and you want to make sure it is legally protected and safe? Contact our legal team. We are experts in IP-Law.


So, let’s say you have an invention in our hands and you realize that someone else also registered or tries to register the same idea. What happens in those cases? We can explain this eventuality using the following tribunal court decision of the Mannheim Regional Court, Judgment of 21.08.2020 – 2 O 149/18

The subject matter of the legal dispute were several parallel patent applications which the University of Heidelberg had filed jointly with the German Cancer Research Centre (DKFZ) at various patent offices.

The patents applied for were intended to protect a chemical substance used in the diagnosis and therapy of prostate cancer (so-called PSMA compound). However, someone else already had/ was about to register the same substance. The lawsuit was essentially aimed at obtaining the transfer of the defendant’s share in the patent applications. The defendant claims to have invented the substance without recourse to the plaintiff’s prior work.

In the board’s view, the plaintiff failed to provide sufficient evidence to prove that it was entitled to the invention. Among other things, the defendant had relied on the fact that an employee of the DKFZ had invented the substance without recourse to the plaintiff’s preliminary work. Therefore, there was a so-called double invention.  In the board’s view, the applicant was unable to refute this.

The chair pointed out that according to the relevant case law of the Federal Court of Justice, the plaintiff had to prove that the defendant had not made the invention itself, but on the basis of the plaintiff’s preliminary work. The plaintiff therefore had to prove that the DKFZ employee had already been aware of the plaintiff’s preliminary work at the time of her invention. This question could not be conclusively clarified on the basis of the evidence available to the board; the board had therefore not been able to obtain the conviction necessary for the applicant to prevail. Insufficient proof remained.

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